Citation Nr: 0329615
Decision Date: 10/29/03 Archive Date: 11/05/03
DOCKET NO. 94-02 613 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a cervical
paravertebral spine disorder.
2. Entitlement to service connection for a lumbar
paravertebral spine disorder.
3. Entitlement to service connection for a bilateral knee
disorder.
4. Entitlement to service connection for an eye disorder,
migraine headaches, infarct of the right side, tropical
spree, and a neuropsychiatric disorder.
5. Entitlement to a total disability rating based on
individual unemployability due service-connected disability.
6. Entitlement to an increased rating for a left inguinal
hernia, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had active service from March 1988 until October
1988 and from February 1991 until April 1991.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a January 1990 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
the San Juan, Puerto Rico. The veteran testified at a
hearing at the RO in December 1991. A February 1996 Board
decision denied service connection for bilateral hearing loss
and remanded the remaining issues for additional
development-specifically, to obtain private clinical records
pertaining to post-service treatment of the left inguinal
hernia and a VA rating examination of that disorder.
The Board again remanded the case in October 2001 to comply
with the Veterans Claims Assistance Act of 2000 (VCAA).
Specifically, the RO was to request that the veteran provide
information concerning all of his medical care providers so
their records could be obtained. The RO also was to have him
undergo VA medical examinations to determine the nature and
etiology of the disabilities of the cervical and lumbar
segments of his spine and of his knees, as well as the
severity of his service-connected left inguinal hernia.
In the October 2001 remand it was noted that, in December
1993, the RO had denied service connection for an eye
disorder, migraine headaches, infarct of the right side,
tropical sprue, and a neuropsychiatric disorder, as well as a
total disability rating based on individual unemployability
(TDIU). And a January 1994 statement contesting that
decision constituted a notice of disagreement (NOD),
but a statement of the case (SOC) addressing these issues had
not been issued. See Manlincon v. West, 12 Vet. App. 238
(1999). RO the RO was instructed to issue an SOC addressing
these issues and give the veteran an opportunity to perfect
an appeal to the Board on these claims. 38 C.F.R. § 20.200.
However, the RO still has not issued an SOC. Thus,
unfortunately, these claims must again be remanded. The
Board will decide the other claims, however.
FINDINGS OF FACT
1. Cervical and lumbar paravertebral spine disorders clearly
and unmistakably first manifested during the interim between
the veteran's two periods of active military service and
clearly and unmistakably did not increase in severity during
his second period of active service.
2. A chronic acquired bilateral knee disorder is not shown;
the veteran's subjective complaints of pain are not
substantiated by an objective clinical diagnosis confirming
he actually has a current disability, much less that it is
related to either period of his service in the military.
3. The veteran's left inguinal hernia is recurrent, as
evidenced by the need to undergo several surgeries, but it is
readily reducible and well supported.
CONCLUSIONS OF LAW
1. Cervical and lumbar paravertebral spine disorders were
not incurred in or aggravated during the veteran's first
period of military service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. § 3.303 (2003).
2. Cervical and lumbar paravertebral spine disorders clearly
and unmistakably preexisted entrance into the veteran's
second period of military service and clearly and
unmistakably did not undergo an increase in severity during
that period of service. 38 U.S.C.A. §§ 1111, 1153, 1137
(West 2002); 38 C.F.R. §§ 3.304, 3.306 (2003).
3. A bilateral knee disorder was not incurred in or
aggravated during either period of the veteran's military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2003).
4. The criteria are met for a 30 percent rating, but no
higher, for the left inguinal hernia. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114,
Diagnostic Code 7338 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002), became effective November 9,
2000. Implementing regulations were created, codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002) (2003),
which essentially eliminate the requirement of submitting a
well-grounded claim and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim, but is not required to provide assistance to a
claimant if there is no reasonable possibility that such
assistance would aid in substantiating the claim. They also
require VA to notify the claimant and the claimant's
representative, if any, of any information, and any medical
or lay evidence, not previously provided to the Secretary
that is necessary to substantiate the claim. As part of the
notice, VA is to specifically inform the claimant and the
claimant's representative, if any, of which portion, if any,
of the evidence is to be provided by the claimant and which
part, if any, VA will attempt to obtain on behalf of the
claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16
Vet. App. 370, 373-74 (2002).
The veteran was informed of the VCAA in a January 15, 2002,
RO letter which indicated that he should provided the
requested evidence and information by March 19, 2002 (i.e.,
within about 60 days). He also was informed that, if the
additional information and/or evidence was received within
one year, and benefits were eventually granted, they might be
paid from the date of receipt of his claim. If, however,
received more than one year after the letter, the RO might
only be able to pay benefits from the date of receipt of the
evidence.
In a decision very recently promulgated on September 22,
2003, Paralyzed Veterans of America v. Secretary of Veterans
Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept.
22, 2003), the United States Court of Appeals for the Federal
Circuit invalidated the 30-day response period contained in
38 C.F.R. § 3.159(b)(1) as inconsistent with 38
U.S.C.§ 5103(b)(1). The Court made a conclusion similar to
the one reached in Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003)
(reviewing a related Board regulation, 38 C.F.R. § 19.9).
The court found that the 30-day (in this case 60-day) period
provided in § 3.159(b)(1) to respond to a VCCA duty to notify
is misleading and detrimental to claimants whose claims are
prematurely denied short of the statutory one-year period
provided for response.
In this particular case, however, it already has been more
than one year since the RO's January 2002 letter. And
during the one-year period since that letter, the veteran
did not identify and/or submit any additional evidence or
provide any additional information concerning the existence
of additional evidence that needs to be obtained. The RO's
letter also made it quite clear that he had a full one year
to respond-albeit preferably within 60 days.
So all things considered, the Board concludes that VA's
preliminary duties to notify and assist have been fulfilled
to the extent possible. The veteran was provided adequate
notice of the evidence needed to substantiate his claims, as
well as notice of the specific legal criteria necessary for
establishing his entitlement to the benefits at issue. This
occurred both in the rating decisions appealed as well as in
the SOC and the May 2003 supplemental SOC (SSOC). He
testified at a December 1991 RO hearing, as well. The Board
also remanded this case to the RO in February 1996 and again
in October 2001 to give him and his representative an
opportunity to present additional evidence and to allow the
RO the opportunity to assist in obtaining additional
evidence. And it is especially worth mentioning that the
latter remand was in direct response to the requirements of
the VCAA. As a result of those remands, additional private
clinical records and VA clinical records were obtained.
There is no indication that other evidence exists and needs
to be obtained.
The veteran refused to attend his VA examinations scheduled
in November 2002, which were to address the disabilities
herein at issue. 38 U.S.C.A. § 5103A(d). No reason or
justification was given for failing to attend those
examinations, even after this was pointed out in the May 2003
SSOC. And, thus, good cause for refusing to attend those
examinations has not been shown. See, generally, 38 C.F.R.
§ 3.655(a) (2002).
The Board therefore finds that VA has properly notified the
veteran of the evidence required to support his claims, and
that all reasonable efforts were made to obtain this
supporting evidence. No further notification or assistance
is required and, in fact, would be unproductive. See Soyini
v. Derwinski, 1 Vet. App. 540, 546 (1991) and Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994). Since there has been
compliance with the VCAA, including the RO completing the
development requested by the Board in its remands to the
extent possible, the veteran will not be prejudiced by the
Board going ahead and deciding his claims without again
remanding the case to the RO. See Bernard v. Brown, 4 Vet.
App. 384 (1993).
Claims for Service Connection
For service connection to be granted for any disability, it
is required that the facts, as shown by the evidence,
establish that a particular injury or disease resulting
in chronic disability was incurred in service, or, if pre-
existing service, was aggravated therein. 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303. Furthermore, with chronic
disease shown as such in service so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service-connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b). For the showing
of chronic disease in service there is required a combination
of manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or a
diagnosis including the word "chronic." Id. Continuity of
symptomatology after service is required to support the claim
when the condition noted during service is not, in fact,
shown to be chronic or where the diagnosis of chronicity may
be legitimately questioned. Id.; see, too, Savage v. Gober,
10 Vet. App. 488, 495 (1997).
Service connection is also possible for any disease initially
diagnosed after discharge from service when all of the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
Certain conditions, such as arthritis, will be presumed to
have been incurred in service if manifested to a compensable
degree within 1 year after service. This presumption is
rebuttable by probative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2003).
Cervical and Lumbar Paravertebral Spine Disorders
Under 38 U.S.C.A. § 1111 veterans are presumed to be in sound
condition when examined for service entrance except at to
defects, infirmities or disorders noted at the time of the
examination or where clear and unmistakable evidence
demonstrates that the injury or disease preexisted service
and was not aggravated by such service.
Under 38 U.S.C.A. § 1153 a preexisting injury or disease will
be considered to have been aggravated by service where there
is an increase in disability during such service, unless
there is a specific finding that the increase in disability
is due to the natural progress of the disease.
Under 38 C.F.R. § 3.304(b) a veteran will be considered to
have been in sound condition when examined, accepted and
enrolled for service, except as to defects, infirmities, or
disorders noted at entrance into service, or where clear and
unmistakable (obvious or manifest) evidence demonstrates that
an injury or disease existed prior thereto. Only such
conditions as are recorded in examination reports are to be
considered as noted.
Under 38 C.F.R. § 3.306(b) clear and unmistakable evidence
(obvious or manifest) is required to rebut the presumption of
aggravation where the preservice disability underwent an
increase in severity during service. This includes medical
facts and principles which may be considered to determine
whether the increase is due to the natural progress of the
condition. Aggravation may not be conceded where the
disability underwent no increase in severity during service
on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service.
In VAOGPREC 03-2003, issued on July 16, 2003, it was held
under VA's regulations as currently interpreted, if a
condition was not noted at entry but is shown by clear and
unmistakable evidence to have existed prior to entry,
the burden then shifts to the claimant to show that the
condition increased in severity during service. Only if the
claimant satisfies this burden will VA incur the burden of
refuting aggravation by clear and unmistakable evidence.
However, this General Counsel opinion went on to hold that
rebutting the presumption of sound condition at service
entrance, provided by 38 U.S.C.A. § 1111, requires a two-
pronged rebuttal standard by which VA must show by clear and
unmistakable evidence both (a) the preexistence of the
claimed disability, and (b) that the disability did not
increase in severity during service. Both prongs require an
evidentiary standard of clear and unmistakable evidence and
a claimant is not required to show an in-service increase in
disability before the second prong of this rebuttal standard
attaches. To the extent that 38 C.F.R. § 3.304(b) states
only the first prong, it is invalid.
Under the language of the statute, VA's burden of showing
that the condition was not aggravated by service is
conditioned only upon a predicate showing that the condition
in question was not noted at entry into service. The statute
imposes no additional requirement on the claimant to
demonstrate that the condition increased in severity during
service. Because 38 C.F.R. § 3.304(b) imposes a requirement
not authorized by the section 1111, it is inconsistent with
the statute. See Skinner v. Brown, 27 F.3d 1571, 1574 (Fed.
Cir. 1994).
In explanation it was stated that the requirement of
increased disability in 38 C.F.R. § 3.306(b) merely reflects
the provisions of 38 U.S.C. § 1153 requiring such an increase
and is clearly valid for that reason. But that requirement
in 38 C.F.R. § 3.306(b) does not apply in the context of
determining whether the presumption of sound condition under
38 U.S.C. § 1111 has been rebutted. 38 U.S.C.A. §§ 1111 and
1153 establish distinct presumptions, each containing
different evidentiary requirements and burdens of proof.
38 U.S.C.A. § 1153 requires claimants to establish an
increase in disability before VA incurs the burden of
disproving aggravation in cases governed by the presumption
of aggravation, while 38 U.S.C.A. § 1111 does not impose such
a requirement in cases subject to the presumption of sound
condition. 38 C.F.R. § 3.306 is intended to implement the
presumption of aggravation under 38 U.S.C.A. § 1153.
38 C.F.R. § 3.306(a) reiterates the language of 38 U.S.C.A.
§ 1153 and cites that statute as its authority. Accordingly,
38 C.F.R. § 3.306(b) is inapplicable to determinations under
38 U.S.C. § 1111.
In this case, there is no evidence of disability of the
cervical or lumbar spinal segments during the first period of
military service, although the veteran did complain of pain
in the area of his coccyx, for which he was given a profile
limiting his duties. There is no service entrance
examination notation of preexisting cervical or lumbar
disability. However, it was after the first period of
service and prior to his second period of service that he
complained of pain throughout his spine. During a VA
examination in August 1989, between his two periods
of service, he complained of muscle spasms. And X-rays
showed straightening of his cervical and lumbar curvatures
suggesting regional muscle spasm. Spasm of the sacrospinalis
or paravertebral muscles again was noted in several VA
outpatient treatment (VAOPT) records from February to
September 1989, also between his two periods of service.
During the veteran's second period of active service there
was an isolated February 13, 1992, clinical notation that he
had cervical and low back pain. There was a notation of
"DJD" (i.e., degenerative joint disease), but no X-rays
were taken. After the second period of service, VA
lumbosacral X-rays in October 1991 revealed a segmental loss
of normal lumbar lordosis which was most likely due to
paralumbar muscle spasm. And VA X-rays on orthopedic
examination in February 1992 again found straightening of the
cervical and lumbar curvatures suggesting regional muscle
spasm. Arthritis of the cervical and lumbar spinal segments
has never been radiologically documented, and this is
required to confirm the veteran has it. See, e.g., 38 C.F.R.
§ 4.71a, Diagnostic Code 5003.
In sum, the cervical and lumbar paravertebral disorders are
manifested by muscle spasm and are first clinically shown
during the interim between the veteran's two periods of
active military service. This is also when he first
complained of pain throughout his entire spine. While he
also complained of such pain during his second period of
service, there is no clinical documentation of muscle spasm
during his second period of active service. Rather, muscle
spasms are not shown again until after his second period of
service.
In specifically addressing the holding in VAOGCPREC 03-2003,
the Board finds that the evidence clearly and unmistakably
establishes that cervical and lumbar paravertebral disorders,
with associated muscle spasm, first manifested after the
veteran's first period of active military service but prior
to his second period of active service. And these disorders
clearly and unmistakably did not undergo an increase in
severity during his second period of active service.
Accordingly, service connection for cervical and lumbar
paravertebral spine disorders is not warranted.
Bilateral Knee Disorder
During the veteran's first period of military service, he
complained of left knee pain and had some swelling and
tenderness in the area of his left knee. However,
a left knee X-ray was negative, although there was an
assessment of a questionable tear of the left meniscus.
There were no complaints or findings as to his right knee.
During the interim between his two periods of service, on VA
examination in 1989, he complained of bilateral knee pain.
But the examination and X-rays of his knees were negative.
Similarly, in the medical history questionnaire at entrance
into his second period of active service he complained of
having or having had a trick or locked knee, but otherwise
there was no actual clinical evidence of disability involving
either knee.
After the veteran's second period of service, a January 1992
VA examination found no cracking sign in his left knee (i.e.,
crepitus). And on VA examination in February 1992 an
evaluation of his knees was negative, as were X-rays,
even though he complained of bilateral knee pain.
Overall, the veteran is shown to have had no more than acute
and transitory knee pain during his first period of military
service. The possible menisceal tear in his left knee, which
was suspected during that period of military service, has
never been clinically confirmed. In fact, other than
notations of complaints of pain, there has never been a firm
diagnosis of a chronic disorder of either knee.
Although such a diagnosis might have been made had the
veteran attended his VA examination scheduled in November
2002, he has not offered any good cause for having failed to
attend that evaluation.
Bear in mind that mere "[P]ain alone, without a diagnosed or
identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service
connection may be granted." See Sanchez-Benitez v. West,
13 Vet. App. 282, 285 (1999).
Accordingly, service connection for a bilateral knee disorder
is not warranted.
Entitlement to a Higher Rating for the Left Inguinal Hernia
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities (Rating Schedule)-which is based as far as
practical on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes
identify the various disabilities. When a question arises as
to which of two ratings apply under a particular diagnostic
code, the higher evaluation is assigned if the disability
more closely approximates the criteria for the higher rating;
otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3. Also, when making
determinations as to the appropriate rating to be assigned,
VA must take into account the veteran's entire medical
history and circumstances. See 38 C.F.R. § 4.1; Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1995).
Here, service connection for residuals of a left inguinal
hernia was granted by a March 1989 RO rating decision. And
the RO assigned an initial 10 percent rating. The veteran
appealed a subsequent January 1990 decision which denied an
increased rating. So the Board does not have to consider
whether he is entitled to a "staged" rating. See Fenderson
v. West, 12 Vet. App. 119, 125-26 (1999). Rather, his
present disability level is the primary concern and past
medical reports do not take precedence over current findings.
Francisco v. Brown, 7 Vet. App. 55 (1994). But the most
recent examination is not necessarily and always controlling;
rather, consideration is given not only to the evidence as a
whole but to both the recency and adequacy of examinations.
Powell v. West, 13 Vet. App. 31, 35 (1999).
The service-connected postoperative residuals of the left
inguinal hernia are evaluated under 38 C.F.R. § 4.114,
Diagnostic Code 7338, which provides that a 10 percent rating
is warranted postoperatively when the hernia is recurrent but
is readily reducible and well supported. A 30 percent rating
is warranted when, postoperatively, the hernia is recurrent
but small or if unoperated it is irremediable and not well
supported by a truss or is not readily reducible. A 60
percent rating is warranted if, postoperatively, the hernia
is recurrent and large and not well supported under ordinary
conditions and is not readily reducible when considered
inoperable. A Note to Diagnostic Code 7338 provides that an
additional 10 percent is to be added for bilateral
involvement, provided the second hernia is compensable. This
means that the more severely disabling hernia is to be
evaluated, and 10 percent, only, added for the second hernia,
if the latter is of compensable degree.
38 C.F.R. §§ 3.322(a) and 4.22 provide that, in cases
involving aggravation by active service, the rating will
reflect only the degree of disability over and above the
degree existing at the time of entrance into the active
service, whether the particular condition was noted at the
time of entrance into the active service, or it is determined
upon the evidence of record to have existed at that time. It
is necessary, therefore, in all cases of this character to
deduct from the present degree of disability the degree, if
ascertainable, of the disability existing at the time of
entrance into active service, in terms of the rating
schedule, except that if the disability is total (100
percent) no deduction will be made. The resulting difference
will be recorded on the rating sheet. If the degree of
disability at the time of entrance into the service is not
ascertainable in terms of the schedule, no deduction will be
made.
In this case, the March 1989 rating decision which granted
service connection for the left inguinal hernia residuals
made no deduction for any level of disability which pre-
existed entrance into the veteran's first period of military
service in March 1988. Apparently, this was because there
was no clinical evidence of actual disability at service
entrance. Accordingly, the Board concurs with this
conclusion implicitly reached by the RO.
Also, a February 1991 rating decision awarded the veteran a
temporary total rating to compensate him for his period of
convalescence following his VA hospitalization in May 1989
for the left inguinal hernia repair. See 38 C.F.R. § 4.30.
During the appeal from the January 1990 rating decision which
denied a rating higher than 10 percent for the service-
connected left inguinal hernia, the veteran had a recurrence
requiring surgery in October 1991. His nonservice-connected
right inguinal hernia also was repaired at that time. Since
the October 1991 surgery, however, there has been no
additional recurrence of the left inguinal hernia and the
residual scarring has been consistently shown on VA
examinations to be well healed and asymptomatic.
The severity of residuals from the right inguinal hernia
repair may not be considered in evaluating the service-
connected left inguinal hernia disability, because service
connection is not in effect for the residuals of the right
inguinal hernia. Thus, even if the residuals of the right
inguinal hernia were compensable under the rating schedule,
not even the 10 percent may be added in evaluating the
service-connected left inguinal hernia. Cf. Mittleider v.
West, 11 Vet. App. 181, 182 (1998) (VA must be able to
differentiate the extent of impairment that is due to
service-related causes from those that are not).
Since the October 1991 left inguinal hernia repair, there is
no clinical evidence that the left inguinal hernia is not
reducible or not well supported. Nevertheless, the veteran's
private physician has stated that the tissue in that area is
prone to a possible recurrence and the veteran's occupational
activities are definitely limited due to his service-
connected left inguinal hernia. And while it is equally
clear that some of the limitations in his employment are at
least partly attributable to his nonservice-connected right
inguinal hernia, he has had only one surgical procedure for
the right inguinal hernia and a total of four left inguinal
hernia repairs. This suggest the left inguinal hernia is the
predominantly disabling condition.
Given these findings, and resolving all reasonable doubt in
the veteran's favor, there are grounds for increasing his
rating to 30 percent for the left inguinal hernia.
38 U.S.C.A. § 5107(b) (West 2002). See also Dela Cruz v.
Principi, 15 Vet. App. 143, 148-49 (2001) ("the VCAA simply
restated what existed in section 5107 regarding the benefit-
of-the-doubt doctrine"). He does not, however, have
sufficient symptoms to support a rating higher than 30
percent under Code 7338.
ORDER
The claim for service connection for a cervical paravertebral
spine disorder is denied.
The claim for service connection for a lumbar paravertebral
spine disorder is denied.
The claim for a bilateral knee disorder is denied.
A higher 30 percent rating is granted for the left inguinal
hernia, subject to laws and regulations governing the payment
of VA compensation.
REMAND
As alluded to earlier, the December 1993 RO rating decision
denied service connection for an eye disorder, migraine
headaches, infarct of the right side, tropical sprue, and a
neuropsychiatric disorder, as well as a TDIU.
A January 1994 statement disagreeing with that decision
constituted a timely NOD, but the RO has not provided the
veteran an SOC concerning these additional claims. This must
be done and the RO must, in addition, give him an opportunity
to perfect an appeal to the Board on these additional claims
by submitting a timely substantive appeal (e.g., a VA Form 9
or equivalent statement). See Manlincon v. West,
12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398,
408-410 (1995).
Accordingly, these claims are remanded to the RO for the
following development and consideration:
The RO must send the veteran and his
representative an SOC concerning the issues of
his entitlement to service connection for an eye
disorder, migraine headaches, infarct of the
right side, tropical sprue, and a
neuropsychiatric disorder, as well as a TDIU.
They also must be advised that a timely
substantive appeal, such as a VA Form 9 or
equivalent statement, still must be submitted in
response to the SOC to "perfect" an appeal to the
Board concerning these specific issues. And they
must be advised, as well, of the time limit in
which to perfect an appeal. If, and only if,
they perfect a timely appeal concerning these
additional claims should they be returned to the
Board.
By this remand, the Board intimates no opinion as to the
ultimate outcome warranted concerning these additional
claims. The veteran need take no action until he is
otherwise notified by the RO. He has the right to submit
additional evidence and argument concerning these claims the
Board has remanded to the RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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